64/92 Krischna Achutan (On behalf of Aleke Banda), 68/92 Amnesty International
on behalf of Orton and Vera Chirwa 78/92 Amnesty International on behalf of
Orton and Vera Chirwa v. Malawi

THE FACTS

1. In communication no. 63/92 Krishna Achuthan appealed to the
Commission on behalf of his father-in-law, Aleke Banda, a prominent political
figure who at the time of the communication had been imprisoned for over
12 years without legal charge or trial. Mr. Achuthan had met with two successive
heads of intelligence of Malawi who said there was no case pending against
Mr. Banda, but that he was being held "at the pleasure of the head of state."

2. In communications nos. 68/92 and 78/92 Amnesty International
petitioned the Commission on behalf of Orton and Vera Chirwa. Orton Chirwa
had been a prominent political figure in Malawi before independence, but
had been living in exile in Zambia with his wife since 1964 because of
differences with Malawi's President Banda. In 1981, the Malawi security
officials took them into custody and they were subsequently sentenced to
death for treason at a trial in the Southern Regional Traditional Court.
They claimed at this trial that they had been abducted from Zambia. They
were denied legal representation. The sentences were upheld by the national
traditional Appeals Court, although the Appeals Court criticized many aspects
of the conduct of the trial.

3. After international protest, the sentences were commuted to
life imprisonment. The Chirwas were held in almost complete solitary confinement,
given extremely poor food, inadequate medical care, shackled for long periods
of time within their cells and prevented from seeing each other for years.

4. In its supplemental communication consisting of a report on
Malawi for March-July 1992, Amnesty International described the arrests
of many office workers in 1992 because of suspicions that the equipment
used in their work, such as computers and fax machines, could be used to
disseminate propaganda of the pro-democracy movement. The report also described
extremely poor prison conditions, including overcrowding and torture consisting
of beatings and electric shocks.

5. The communication also described the detention and intimidation
of Roman Catholic bishops. Trade union leaders were imprisoned, and peacefully
striking workers were shot and killed by the police. Police also raided
student dormitories and arrested students who were beaten and tortured.

THE LAW

6. Article 4 of the African Charter reads:

" ... Every human being shall be entitled to respect
for his life ... "

The conditions of overcrowding and acts of beating and torture
that took place in prisons in Malawi contravened this article. Aspects
of the treatment of Vera and Orton Chirwa such as excessive solitary confinement,
shackling within a cell, extremely poor quality food and denial of access
to adequate medical care, were also in contravention of this article.

8. Article 6 of the African Charter reads:

"Every individual shall have the right to liberty and
to the security of his person. ... "

The massive and arbitrary arrests of office workers, trade unionists,
Roman Catholic bishops and students violated this article. The arbitrary
detention Mr. Aleke Banda suffered is likewise a violation of Article 6.

9. Mr. Banda was not allowed recourse to the national courts to
challenge the violation of his fundamental right to liberty as guarranteed
by Article 6 of the African Charter and the constitution of Malawi. Furthermore,
Aleke Banda was detained indefinitely without trial. The Commission finds
that Mr. Banda's imprisonment violated Article 7, paragraph 1(a) and (d)
of the African Charter.

10. Vera and Orton Chirwa were tried before the Southern Region
Traditional Court without being defended by a counsel. This constitutes
a violation of Article 7, paragraph 1 (c) of the African Charter.

11. The Commission notes that Malawi has undergone important political
change after the submission of the communications. Multiparty elections
have been held, resulting in a new government. The Commission hopes that
a new era of respect for the human rights of Malawi's citizens has begun.

12. Principles of international law stipulate, however, that a
new government inherits the previous government's international obligations,
including the responsibility for the previous government's mismanagement.
The change of government in Malawi does not extinguish the present claim
before the Commission. Althought the present government of Malawi did not
commit the human rights abuses complained of, it is responsible for the
reparation of these abuses.

FOR THESE REASONS, THE COMMISSION holds that there has been a
violation of Article 4, 5, 6, and 7, paragraph 1, (a), (c) and (d) of the
African Charter.